M.T. v. G.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5075-14T2

M.T.,

Plaintiff-Respondent,

v.

G.D.,

Defendant-Appellant.

_________________________________

December 6, 2016

Argued November 15, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1937-15.

Lynne M. Machtemes argued the cause for appellant (Iacullo Martino, L.L.C., attorneys; Ms. Machtemes, on the brief).

M.T., respondent pro se.

PER CURIAM

Defendant appeals from a May 27, 2015 final restraining order (FRO) that plaintiff, his former girlfriend, obtained pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. We affirm.

The judge conducted an FRO hearing and took testimony from the parties and plaintiff's boyfriend (the boyfriend). Defendant was represented by counsel, and plaintiff appeared pro se. We discern the facts from the evidence adduced at the hearing.

The parties have a history of domestic violence, including defendant placing his hands around plaintiff's throat, which frightened her. Defendant sent plaintiff nineteen text messages after the parties canceled a trip to Florida. At that time, defendant suspected that plaintiff had begun dating the boyfriend. The messages contained vulgarities and concerned defendant's perceived ideas about plaintiff's sexual relationship with the boyfriend.

In the text messages, defendant had threatened the safety of plaintiff and the boyfriend. In addition to the text messages, which plaintiff stated were constant, "like every other day," defendant emailed plaintiff's family members saying that she was "a bad mom." Plaintiff asked defendant to stop texting her, but defendant ignored that request. Defendant texted plaintiff a video of him lighting a picture of her on fire. As to the video, plaintiff testified that she watched her picture "lit up in fire." Plaintiff stated she was disturbed and upset, and that she feared defendant would "come to my house and burn [it] down."

The judge rejected defendant's testimony, concluded plaintiff was a credible witness, and determined that defendant "let his anger get the best of his emotions[,] and he intended . . . to annoy or alarm [plaintiff,]" and that defendant had an intent to harass plaintiff. The judge concluded that an FRO was necessary to protect the safety of plaintiff.

On appeal, defendant argues that there existed insufficient evidence to enter the FRO, the judge abused his discretion by admitting hearsay into evidence, and the judge improperly asked leading questions of the boyfriend.

Our standard of review is limited. In a domestic violence case, we accord substantial deference to a Family Part judge's findings, which "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Deference is particularly warranted when much of the evidence is testimonial and implicates credibility determinations. Ibid. Thus, we do not disturb a Family Part judge's factual findings and legal conclusions unless we are "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).

Domestic violence occurs when an adult or emancipated minor commits one of several enumerated predicate acts upon a person protected by the Act. See N.J.S.A. 2C:25-19(a). A judge must engage in a two-step analysis when determining whether to grant an FRO under the Act. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). First, the judge must be satisfied, by a preponderance of the credible evidence, the victim has proven the occurrence of one or more of the predicate acts enumerated in N.J.S.A. 2C:25-19(a). Ibid. Only if the victim proves one of the predicate acts does the judge then consider whether an FRO is warranted to protect the victim. Id. at 125-26.

Plaintiff alleged defendant harassed her. Harassment, N.J.S.A. 2C:33-4, is a predicate act for domestic violence. N.J.S.A. 2C:25-19(a)(13). A person is guilty of harassment where, "with purpose to harass another," he or she

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4(a) to (c).]

A judge may use "[c]ommon sense and experience" when determining whether a defendant intended to harass a victim. State v. Hoffman, 149 N.J. 564, 577 (1997). "Although a purpose to harass can be inferred from a history between the parties, that finding must be supported by some evidence that the actor's conscious object was to alarm or annoy; mere awareness that someone might be alarmed or annoyed is insufficient." J.D. v. M.D.F., 207 N.J. 458, 487 (2011) (citation omitted). That is, a plaintiff's subjective reaction to the conduct, standing alone, is insufficient to establish a defendant acted with improper purpose. Ibid. Importantly, courts must consider a couple's interactions during a breakup in determining whether the defendant acted with the requisite purpose. Ibid.

There exists sufficient credible evidence in the record to support the judge's finding that defendant committed the predicate act of harassment. Defendant's text messages used "offensively coarse language" and were likely to cause annoyance or alarm. In his text messages, defendant called plaintiff "a cunt" and typed she was a "VICIOUS CUNT." He texted plaintiff asking if she "fucked [the boyfriend] yet? Have you sucked [the boyfriend's] dick yet? Have you? Answer my God damn question NOW. No answer is an admission of guilt!" Defendant stated he would "spit on [plaintiff and the boyfriend]," wrote "[y]ou're fucking done, sayonara," and then instructed plaintiff she should "[g]et a restraining order if you feel you must."

There also exists sufficient credible evidence in the record to support the judge's finding that an FRO was necessary to protect plaintiff. Plaintiff testified that she was "petrified [and] scared [for] my safety." Plaintiff pleaded with defendant to stop communicating with her. It is undisputed that defendant sent plaintiff the video of him burning a picture of her. In addition to finding that defendant's purpose in texting plaintiff was to annoy her, the judge found defendant sent the video of him burning a picture of plaintiff to seriously alarm plaintiff. The judge also determined that defendant threatened plaintiff by saying he would "kick the [boyfriend's] ass in front of [plaintiff] and then spit on both of [them]." And in entering the FRO and finding it was necessary to protect plaintiff, the judge relied on the prior incident of defendant placing his hands around plaintiff's neck.

After careful consideration of the record, we are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add the following brief remarks.

D

efendant argues the judge unfairly asked leading questions of the boyfriend during the FRO hearing, which admitted hearsay testimony. We note that defendant's counsel at the FRO hearing, who is different than defendant's appellate counsel, cross-examined the boyfriend extensively. On his cross-examination, the boyfriend testified that he directed defendant to stop communicating with plaintiff because plaintiff was "distraught." Although defendant argues the boyfriend offered hearsay testimony when he testified plaintiff told him she was "terror stricken" after she received the video, plaintiff herself testified that she was "petrified [and] scared [for] my safety." Thus even if the boyfriend related a hearsay statement from plaintiff, or expressed his assumptions about plaintiff's state of mind after she received the video of defendant burning plaintiff's picture, such information was harmless because plaintiff testified she was "petrified [and] scared [for] my safety." As to the judge's evidentiary rulings, we use an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We see no such abuse here.

Affirmed.